SALT - Tuesday, 26 Av 5776 - August 30, 2016

  • Rav David Silverberg

            Yesterday, we noted the question raised by Rav Yaakov Mecklenberg, in his Ha-ketav Ve-ha’kabbala, concerning the Torah’s admonition in Parashat Re’ei (15:9) not to refuse a loan request made shortly before shemita.  It seems from the Torah that the concern revolved around the law of shemitat kesafim – the annulment of loans at the end of shemita – which might likely discourage prospective lenders from granting loans as the shemita year draws near.  However, Halakha offers lenders the option of circumventing this law by granting loans on the explicit condition that they can be collected after shemita.  The question thus arises as to why the Torah needed to issue this prohibition, and to urge lenders to extend loans despite the likelihood of the debt’s cancellation, in light of the simple solution provided by Halakha for ensuring the right to collection after the shemita?

            This question, in truth, was addressed already by several Rishonim.  The Sefer Ha-chinukh (483), in his discussion of this Torah prohibition against refusing loan requests before shemita, writes, “The Torah will warn us of things even though they are possible through enactments and stipulations.”  The Chinukh seems to concede that prospective lenders would not likely refuse loan requests before shemita out of fear of the debt’s cancellation, but he writes that the Torah issued this prohibition nonetheless, and there is no reason to question why this prohibition was necessary.  This answer, however, seems to fail to explain the Mishna’s famous account in Masekhet Shevi’it (10:3) of Hillel’s enactment of the pruzbul document.  The Mishna tells that in Hillel’s time, people would abstain from granting loans in violation of this Torah prohibition, and Hillel therefore instituted the pruzbul which allows lenders to collect their debts after shemita.  This seems to indicate that people truly were afraid to lend out of concern that the debt would be annulled on the shemita year, and the question arises as to why they did not utilize the option of lending on condition that collection would be allowed after shemita.

            The Ritva addresses this question in his commentary to Masekhet Makkot (3b), and he suggests several reasons why lenders did not want to utilize the option of stipulating that the debt should remain intact after shemita.  First, many people did not remember at the time they granted the loan that such a stipulation can be made.  Later, however, as the end of the shemita year ends, lenders would remember to write a pruzbul to allow collection after shemita.  Secondly, as the shemita year annuls debts only if the time for payment had already passed, a lender would not want to make it seem from the outset that he does not trust the borrower to pay on time.  Thirdly, people might not want to make this explicit stipulation at the time they extend the load because it gives the impression of expressing contempt for the Torah law of shemitat kesafim.  The Ritva also suggests that if everybody would make this condition before extending a loan, the law of shemitat kesafim would be all but forgotten.  The institution of pruzbul, however, requires all lenders to sign special documents towards the end of the shemita year, creating a “buzz” that ensures awareness of this Torah law.

            Several Acharonim cite a much different answer to this question from the Bekhor Shor commentary to Masekhet Makkot (3b).  The Bekhor Shor writes that if a person requesting a loan does not want to waive his rights to have the debt annulled after shemita, and as a result, the prospective lender refuses to grant his request, then the prospective lender is in violation of this Torah law.  Although Halakha allows stipulating that the debt would remain intact after shemita, this applies only if the borrower accepts such a condition.  If not, then the lender violates a Torah prohibition by refusing to grant the loan, and this is what was happening in Hillel’s time, thus prompting the enactment of the pruzbul.

            The Chatam Sofer, in one of his published responsa (C.M. 113), goes even further, asserting that even if the borrower accepts such a condition, the lender violates this prohibition by insisting on circumventing shemitat kesafim.  Although he is then permitted to collect the debt after shemita, he has transgressed a Biblical prohibition by imposing such a condition.  The Chatam Sofer thus explains that in Hillel’s time, people were refusing to grant loans without conditioning the loan on the ability to collect payment after shemita, and lent money only after imposing such a condition, thereby transgressing the Torah’s prohibition.  Hillel therefore instituted the pruzbul system, whereby the law of shemitat kesafim is circumvented without imposing a condition on the loan.