Prozbul (Part 1 of 3)
I. The Source of the Law and its Purpose
The earliest source for prozbul is found in the Mishna:
A prozbul prevents the remission of debts in the shemitta year. This is one of the regulations made by Hillel the Elder. For he saw that people were unwilling to lend money to one another, disregarding the warning laid down in the Torah, "Beware lest there be an unworthy thought in your heart saying, etc." He therefore decided to institute the prozbul. (Shevi'it 10:3).
Prozbul then is a rabbinic enactment dating to the end of the second
According to the simple understanding of the mishna, the objective of the enactment was to save the potential lenders from violating a Torah prohibition. At first glance, this is odd: If people are consistently violating a Torah prohibition, is it really appropriate to alter the Halakha, thereby rendering the prohibition irrelevant? Surely this falls into the category of "an enactment for the wicked"![1]
Indeed, from the Gemara it would appear that the objective of the enactment was different. The Gemara in Gittin (37b) explains that the word prozbul is an abbreviation for the word, "prozbuliboti," which means "enactment (proz) for the rich (buli) and the poor (boti)." The Rishonim (Rashi, Rash on the Mishna, and others) understand that this means that the enactment ensures that the rich will receive their money in return and that the poor will find people who will agree to lend them money.[2] Why do we want the rich to receive their money in return? Surely the Torah established that they should not receive it! It would seem to be clear that the enactment was primarily instituted for the benefit of the poor, so that they should have access to loans, only that in order that the rich be ready to lend, they must be assured that the money that they lend out will be repaid.
According to this, while it is true that the enactment is also beneficial to the wicked, and it stems from a flawed phenomenon that the Torah explicitly condemns, the ultimate goal of the enactment actually fits in with the objective established by the Torah: to help the poor to borrow money. The Torah establishes the ideal way to reach this goal, but Hillel saw that this path no longer achieves this goal, and therefore he was forced to change the law in order to reach it. The mishna can also be understood in this fashion: The mishna does not mean to say that prozbul was enacted in order to save people from violating a prohibition, but rather that it serves as a substitute for the prohibition. The prohibition comes to prevent harm from coming to the poor, but when Hillel saw that people were violating the prohibition and the poor were suffering, he instituted an alternative path to help them.
Is it proper to utilize this enactment, which contradicts the Torah's intention, and stems from a situation that is far from ideal? Fundamentally, the answer is no: it is preferable to act in accordance with the original spirit of Halakha and remit debts, rather than rely on a prozbul. In many cases, however, it is difficult to say that the release of a debt conforms with the spirit of Halakha. For example, most people "lend" money to banks. Is it possible to identify a bank with "your needy brother" mentioned by the Torah, and that in the spirit of Halakha, one should remit the bank's debts? Was it to further this end that the mitzva of remitting debts during the shemitta year was given? Surely the Torah had in mind somebody who lends money to the poor and misfortunate; and somebody who extends such loans should indeed fulfill the mitzva and remit his debts, if he can afford to do so. When, however, we are dealing with money owed by a bank or the like, there seems to be no intrinsic value in remitting the debt, and there is no reason not to make use of the mechanism instituted by Hillel to circumvent the mitzva.
II. The Essence of the Prozbul
The Rambam's Position
What precisely is a prozbul? The following mishna deals with question:
The text of the prozbul is as follows: "I hand over to you, so-and-so, the judges in such-and-such a place, my bonds, so that I may be able to recover any money owed to me from so-and-so at any time I shall desire;" and the prozbul was to be signed by the judges or witnesses. (ibid. mishna 4)
According to this reading of the mishna, it would appear that the creditor merely informs the court that he will collect all his debts as usual (the word "moser," lit., "hand over," in the sense of a meser, a message), and the judges or witnesses attach their signatures to this declaration. This is the way that the Rambam explains the mishna in his commentary to the Mishna. According to this, there is no special mechanism for circumventing the mitzva, but merely a cancellation of the mitzva. In essence, Hillel enacted that any person who so desires can decide that the law of shemitta does not apply to him, provided that he makes a declaration to this effect before a court and the court documents this declaration in writing. How is it possible to simply cancel a Torah mitzva? The Gemara raises this very question:
But is it possible that where according to the Torah the seventh year releases, Hillel should ordain that it should not release? Abaye said: He was dealing with the sabbatical year in our time, and he went on the principle laid down by Rabbi [Yehuda HaNasi]… The Rabbis, however, ordained that it should be operative, in order to keep alive the memory of the sabbatical year, and when Hillel saw that people refrained from lending money to one another, he decided to institute the prozbul. (Gittin 36a-b)
The Gemara establishes that prozbul cannot actually cancel the Torah mitzva of shemitta, and that prozbul is based on the position of Rabbi Yehuda Ha-Nasi that shemitta in our time is in force only by rabbinic decree. According to this opinion, shemitta is in force today only as a reminder of the past, and when Hillel saw that this hurt the poor, he understood that the damage caused by shemitta observance is greater than any possible benefit, and so he effectively decided to cancel the mitzva. The Rambam (Hilkhot Shemitta ve-Yovel 9:16) also emphasizes that prozbul is only effective in times when the observance of shemitta is only by rabbinic law.[3]
If in essence shemitta observance is cancelled, why is it necessary to draw up a prozbul before a court? The Rambam offers a surprising answer to this question in his ruling on this matter:
If Torah scholars lent money to each other, and one informed the others, saying: "I inform you that any money owed to me I shall be able to recover at any time I shall desire," he is not required to write up a prozbul, for they know that the remission of debts in our time is by rabbinic decree, and with words alone it is cancelled. (Hilkhot Shemitta ve-Yovel 9:27)[4]
According to the Rambam, by strict law there is no need to commit a prozbul to writing, or to arrange it in the presence of a court. Rather, the mitzva of remitting debts is cancelled "with words alone," that is to say, with an oral declaration before other people. In practice, however, the Rambam is only prepared to sanction leniency in the case of Torah scholars, who know that shemitta observance in our day is by rabbinic decree. Others are not fluent in these laws, and they are liable to think that even Torah laws can be cancelled in this manner. It is, therefore, necessary to show them that the mitzva is not cancelled "with words alone," and to require a more complicated process to free oneself from the mitzva: drawing up a prozbul in the presence of a court. The Rambam is stringent about this requirement and insists that the prozbul be written in the presence of a court composed of "the greatest Sages," who have the authority to divest people of their property, as we shall see below.[5] As stated above, according to the Rambam, we seem to be dealing with a side issue, but by strict law it suffices if the creditor proclaims that he does not want the laws of shemitta to apply to his debts.
Handing Bonds Over to the Court
The Rambam's position, however, is exceptional, and the other Rishonim understand prozbul in a different manner.[6] The source for their understanding is found in the words of the Sifrei:
"But that which is yours, and now with your brother" (Devarim 15:3) – but not that which is your brother's and now in your hand. From here you say: One who lends money against a pledge, the debt is not released. "And now with your brother your hand shall release" – but not one who hands his bonds over to a court. From here they said: Hillel enacted the prozbul in the public interest… And the text of the prozbul is as follows: "I hand over to you, so-and-so, the judges in such-and-such a place, all money that is owed to me, so that I may be able to recover it at any time I shall desire;" and the prozbul was to be signed by the judges or witnesses. (section 113)
According to the Sifrei, the enactment of prozbul is based on the law that states that if somebody hands over his bonds to a court, the debts recorded therein are not released during the shemitta year. This law is derived from biblical verses and appears to be of biblical origin, and Hillel came and added to it the enactment of prozbul. The relationship between the original law and Hillel's enactment will be examined below, but it is clear that the enactment does not come to cancel the mitzva, as was understood by the Rambam, but merely to exploit one specific law relating to the mitzva, in order to prevent the debts from being remitted.
When we examine the text of the prozbul appearing in the Sifrei, we see an important difference between it and the text appearing in the Mishna. The Mishna reads: "I inform you (moser ani) that any (she-kol) money owed to me I shall be able to recover at any time I shall desire," whereas the Sifrei reads: "I hand over (moserani) to you… all (kol) money that is owed to me, so that I may be able to recover it at any time I shall desire." The difference is limited to a single letter (a shin), but nevertheless it is very significant. According to the Mishna, the word moser means "inform": the creditor informs the judges of his desire to collect the debt. According to the Sifrei, on the other hand, the word refers to a real transfer: the creditor hands over his debts to the judges, and this is what makes it possible for him to collect them. Truth be said, the reading of "kol chov" is also found in several manuscripts of the Mishna, and also in some of the Rishonim (Tosafot, Gittin 32a; Ran, ibid. 18b in Alfasi; Yere'im, no. 164; Tur, 67; and elsewhere). And as stated, this is the accepted understanding of prozbul, that it involves a transfer of one's debts to the court, so that they are not released during the shemitta year.
Why is a debt that had been handed over to the court not released? The Sifrei learns this from the verse, "But that which is yours, and now with your brother your hand shall release," but it doesn't really explain how this law is derived from the verse. The Gemara (Gittin 37a) explains the law by saying the "the court seizes [the debt] for them," but it doesn't expand on what this means. If we carefully examine the words of Chazal and the Rishonim, we find two different understandings of this law.
At the beginning of the passage from the Sifrei, there is another law that states that if one lends money against a pledge, the debt is not released, for it is stated: "But that which is yours, and now with your brother" – but not that which is your brother's and now in your hand. The laws of shemitta only apply when the creditor's money is in the hands of the debtor, and the debtor owes it to him, but not when the creditor is holding something belonging to the debtor, so that the debt is regarded as having been paid, at least temporarily, as what happens when a loan is extended against a pledge. According to the reading of the Sifrei cited by some of the Rishonim (Tosafot, Ramban, Ritva, and others in Gittin 36a), the law of handing over bonds to a court is also based on the very same derivation. Why is a creditor who handed over his bonds to a court regarded like a creditor who is holding a pledge belonging to the debtor? Apparently because a court is authorized to seize the debtor's property and collect the debt against his will, so that once the bond is handed over to the court, the debt is regarded as if it has already been collected. This is what the Ritva means when he writes (Makkot 3b): "Whoever actually hands over his bonds to a court, by Torah law the debt is not released, for it is regarded as having been collected."
According to the standard reading of the Sifrei, however, the law governing one who extends a loan against a pledge is distinct from the law governing one who hands over his bonds to a court (and so too Yerushalmi, chap. 10, end of halakha 1). The law of handing over bonds to a court is not derived from the words "but that which is yours, and now with your brother," but rather from the words, "and now with your brother your hand shall release." This derivation appears to be saying the law of debt remission applies between individuals, namely, that a person releases the debts of his brother, but a court which is a public institution is not subject to the law. This also follows from the words of Rashi:
When he hands his bonds over to a court, he does not demand payment from the debtor, but rather the court does, and it confiscates [the debtor's] property, and we do not apply to it: "He shall not exact it." (Gittin 32b, s.v. moserani)
The Yere'im writes in similar manner (sec. 164): "We do not apply to him, 'He shall not exact it,' for it is the court and not he who exacts [the debt]." And this seems to be the understanding of other Rishonim as well. According to this, we do not regard the debt as if it has already been collected, but rather we view the situation as if the debtor owes money to the court, and such a debt, owed to a public institution, is not remitted by shemitta. Of course, the court will not keep the money, but rather it will pass it on to the creditor, but nevertheless the debt is viewed as owed to the court.
According to the first understanding, the court functions here as debt collectors, who collect money owed to the creditor, whereas according to the second understanding, the court functions here as the creditor, to whom the money is, as it were, owed. According to the first understanding, it is clear that the creditor can collect the debt himself, whereas according to the second understanding, it seems that the creditor can do so only as an agent of the court.
[For Part 2 click here, and for Part 3 click here].
(Translated by
[1] The Acharonim tried to answer this question. See, for example, the Bach (Choshen Mishpat 67, 20) and Tosafot Anshei Shem on the mishna in the name of the Maharshal.
[2] The Vilna Gaon (Shenot Eliyahu on the Mishna) understands, however, that the enactment for the rich was that it saved them from violating a prohibition, and that the enactment for the poor was merely a secondary benefit, and thus the Gemara conforms to the Mishna. This is the reason, according to the Gra, that the enactment is known as prozbul (= enactment for the rich), and not prozbuliboti (= enactment for the rich and for the poor).
[3] The Ra'avad disagrees with the Rambam, arguing that prozbul works even when shemitta is in force by Torah law. Their disagreement is based on their respective understandings of the continuation of the Gemara. The Gemara later raises a different objection, which Rava resolves by invoking the principle of "hefker bet din hefker," i.e., the court's authority to divest a person of his money. According to the Ra'avad, and so too Rashi and other Rishonim, this answer applies also to the first objection: Hillel was able to cancel shemitta that is in force by Torah law, because the court has the authority to divest the debtor of his money. According to the Rambam, and so too the Tosafot and Rama (cited in "Chiddushim mi-Ketav Yad"), Rava comes only to answer the second objection, and not the first, and so the Gemara remains of the opinion that prozbul is only valid when shemitta is in force by rabbinic decree. The Acharonim discuss the question, why, according to the Rambam, can't the principle of hefker bet din hefker be invoked to cancel shemitta by Torah law? Some understand that the principle of hefker bet din hefker does not work to divest money from one person and give it to another. It might, however, be argued that we are not dealing with the issue of authority, but with that of motivation: According to the Rambam, that prozbul does not circumvent shemitta, but rather it cancels it, it stands to reason that Hillel was only willing to make his enactment when shemitta is merely a "reminder." This is explicit in the words of the Tosafot and the Rama, that Rava's answer does not help to cancel shemitta, not because the court is incapable of expropriating money, but rather because it is inconceivable that the court would use their authority to cancel a Torah mitzva ("thus it would mean that the court can uproot the commandments of leket, shikhecha, pe'a, ma'aser ani and the like" - Rama). And see below, that according to the Tosafot, the Gemara's question does not deal with the court's authority to cancel a mitzva, but rather with its motivation to do so.
[4] This is the Rambam's understanding of the Gemara's statement that "the rabbis in the
[5] The great gap between the law applying to Torah scholars and that which is required of the masses brought the Ra'avad to write that the Rambam's words contradict each other.
[6] Many have understood the Rambam in a manner that is similar to the other Rishonim, in contradiction to what he says in his commentary to the Mishna.
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