Prozbul (Part 2 of 3)

 

 

 

The Relationship Between Prozbul and Handing Over Bonds to the Court

 

            The question now arises: If prozbul involves handing over bonds to the court, what exactly did Hillel introduce with his enactment; surely it would seem that we are dealing with a Torah law, as is implied by the Sifrei! And why does the Gemara say: "By Torah law the sabbatical year releases [debts], but Hillel enacted that it dos not release [them]." The Rishonim dealt with this question, and proposed three main answers:

 

1)                  According to the Tosafot (Gittin 36a, s.v. mi ika), prozbul is indeed effective by Torah law. Hillel did not introduce a new law that did not exist earlier, but merely publicized an existing law. Until the time of Hillel, people did not hand over their bonds to a court, and it is even possible that the court was not prepared to receive bonds from individuals. Hillel turned this into an accepted practice that with the approach of the shemitta year people would hand over their bonds to the court, so that the shemitta year would have little practical consequences, and people would not refrain from lending money to the poor. According to this, the Gemara does not ask how did Hillel manage to cancel the mitzva of shemitta, but rather, how did he dare to do so: how is it possible that Hillel institutionalized the effective cancellation of the mitzva of shemitta? The possibility of doing so had always existed, but it was inappropriate to turn it into an accepted practice, and thus cause the mitzva of shemitta almost to disappear. The Gemara answers that since the observance of shemitta in our time is only by rabbinic decree, to remind us of the law when shemitta was in effect by Torah law, and in practice it is a harsh blow for the poor, Hillel decided that the welfare of the poor outweighs the maintenance of this "reminder." Hillel found a loophole in the Halakha that effectively allows for the circumvention of shemitta, and created therewith a practical procedure for getting around the mitzva.

 

The difficulty with this understanding is that the Gemara (Gittin 36b) discusses the force of the enactment of prozbul, whether or not it is an enactment for all generations and under what conditions can it be cancelled. This discussion would seem to be irrelevant if the basic law is biblical, and the enactment merely regulates its use from a practical perspective.

 

2)                  Rashi (ibid., s.v. Rava) implies that he disagrees with the Tosafot. According to Rashi's understanding of the Gemara, later in the passage there is another answer to the question, how could Hillel change a Torah law: Because the court is authorized to expropriate property. The Torah states that the debt is released, but the Sages have the power to divest the debtor of his assets and transfer them to the creditor, and thus recreate the debt, and this is not regarded as canceling a Torah law. Rashi clearly understands that Hillel did not merely exploit an existing law, but rather he changed the law.

 

On the other hand, the words of Rashi in various places (Makkot 3b; Gittin 32b; Ketubot 89a) imply that Hillel's enactment did not add anything to the law of handing over bonds to the court, but rather "handing over bonds to the court – this is the prozbul enacted by Hillel" (the words of Rashi in Makkot, ibid.). According to this, Hillel seems to have introduced the law of handing over bonds to the court. This is the way that Rashi was understood by the Tosafot (see above) and others, namely, that the handing over of bonds mentioned in the Sifrei is merely an asmakhta, and in fact this is the law of prozbul enacted by Hillel. This was also the conclusion of the Ramban and the Meiri (Gittin, ibid.). Support for this understanding may be brought from the words of Midrash Tannaim:

 

"But that which is yours with your brother your hand shall release" – not one who hands over his bonds to a court. From here Hillel instituted the prozbul, expounding as follows: "But that which is yours with your brother" – not one who hands over his bonds to a court.  (Devarim 15:3)

 

            This midrash implies that the verse was interpreted in this manner in the framework of the enactment of prozbul, and that we are not dealing with a law that had existed previously. According to this, Hillel's enactment is far-reaching: The Torah gave no consideration to the fact that a bond had been handed over to a court, and Hillel created this law ex nihilo, asserting that handing over a bond to the court prevents its remission during the shemitta year. As stated above, the Gemara asks how could Hillel cancel the law of shemitta in this manner, and it answers that we are dealing with shemitta that is only in force by rabbinic decree, or that this is based on the court's authority to confiscate property.

 

            According to this understanding, there is no difference between prozbul and handing over bonds to the court, and one who writes a prozbul must actually hand over his bonds to the court. Several Rishonim note, however, that the mishna mentions the law that "one who hands over his bonds to a court, the debts are not released" (10:2) and then another law that if one draws up "a prozbul, the debt is not released" (10:3). The implication is that we are dealing with two different laws.

 

3)                  The Ritva (Makkot 3b), the Ran (Gittin ibid.), Rabbenu Crescas (ibid.) and others proposed a different understanding which distinguishes between the two laws (the source is the words of the Ramban, ibid.). According to them, the Torah established that if a bond was actually handed over to the court, the debt is not released. Hillel expanded this law, and established that for the debt not to be released, it suffices if the creditor declares that he is handing it over to the court. It is unnecessary to actually hand over the bond to the court, and even if the bond is not in his hands, or if it is an oral loan, the writing of the prozbul suffices for the debt to be regarded as if it had been handed over to the court and so the debt is not released.

 

To summarize, we have seen four understandings of the enactment of prozbul:

 

1)                 Tosafot in Gittin – Prozbul is merely the institutionalization of a previously existing law that states that the handing over of bonds to a court prevents their remission during the shemitta year.

 

2)                 The Ritva and others – Prozbul is an expansion of this law, according to which the bonds do not actually have to be handed over to the court, but rather a mere declaration suffices.

 

3)                 Rashi and others – Prozbul is an entirely new law that cancels the mitzva of shemitta when the bonds are handed over to the court.

 

4)                 The Rambam – Prozbul is a sweeping cancellation of the mitzva of shemitta, which by strict law can be done by way of a declaration on the part of the creditor that he wishes to collect his debts. This enactment is not in any way connected to the law of handing over bonds to the court.[1]

 

There is a practical difference between these various understandings regarding the question whether it is necessary to actually hand over the bonds to the court: According to Rashi and the Tosafot, it is possible that this is necessary, whereas according to the Rambam and the Ritva, this is not necessary. The Shulchan Arukh (Choshen Mishpat 67) does not explicitly address this issue, but his ambiguity suggests that it is unnecessary to hand over the bonds to the court. This is also implicit in the Rema's ruling (ibid. 19) that prozbul prevents the release of a debt even in the case of an oral loan.

 

(Translated by David Strauss)

[For Part 1 click here and for Part 3 click here.]