Prozbul (Part 3 of 3)

 

How Prozbul Works

 

            We have discussed the enactment of prozbul in general, but we must still understand how precisely prozbul works: What does the creditor do, what is the role of the judges in the process, and why must the matter be committed to writing.

 

            According to the mishna, as may be recalled, the creditor declares before a court, that he is handing his debts over to the court, and the judges or witnesses attach their signatures to his declaration. The Rishonim appear to disagree about what is the essential component of the process that prevents the debts from being released: the creditor's declaration or the writing of the prozbul. Let us began with the clear words of the Ran on the matter. The mishna (10:5) asserts that if a prozbul is post-dated – i.e., if the date appearing in the prozbul is later than the day on which it was actually written – the prozbul is invalid and does not prevent remission of the debts. The Ran asks about this: If we know with certainty when the process was executed, what difference does it make that the document is improperly dated? In any event, the debts were handed over to the court in the proper manner! The Ran answers as follows:

 

This is not difficult. For were it that the prozbul attests to the fact that the bonds were handed over to the court, this would be true. But this is not the essence of prozbul, for in such a case there would be no need for an enactment, because handing over bonds to a court [prevents the remission of debts] by Torah law. Hillel's enactment relates to the handing over of words, and in such a case, the prozbul deed itself is what divests the debtor of his money, and not the court session that was convened for that purpose. (Responsa ha-Ran, no. 77)

 

            According to the Ran, a prozbul deed does not serve as a deed of proof, but as a deed that executes a transaction. It does not attest to the handing over of the creditor's bonds to the court, for the fact is that the bonds are not actually handed over to the court. The creditor declares his intention to hand over his debts to the court, but debts cannot be transferred by way of a simple declaration. The novelty of Hillel's enactment is that when the judges sign such a declaration, they have the authority to transfer the creditor's debts to the court. A prozbul deed is regarded as a "court action" (ma'aseh bet din), and it can divest the debtor of his money, so that the debt is not released. It is clear then that the prozbul deed must meet the criteria set for deeds in general and be dated properly.

 

            The Ran adduces proof for his position from the Gemara. The Mishna states that the prozbul is signed by the judges or by witnesses. The Gemara (Gittin 33a) concludes that even if the entire prozbul was formulated as the words of the judges: "We were a court, and so-and-so came and said to us, etc.," the judges do not have to sign it, but rather it suffices that their names appear in the deed, and the deed be signed by two witnesses. The Ran asks: If a prozbul serves merely as proof, what is the novelty here? Rather, it seems that a prozbul is a "court action," and the novelty here is that the signature of the judges is not necessary.

 

            Another important authority, however, arrived at the opposite conclusion:

 

There, once he says before the court, "I hand over to you, so-and-so, the judges," the act of prozbul is completed, and the prozbul that is signed serves merely as proof. For according to the authority who says that prozbul requires three people, it suffices for two witnesses to sign, for [the signatures] serve merely as proof. (Responsa ha-Rivash, no. 382)

 

            According to the Rivash, were it the prozbul deed that transfers the debts and cancels the shemitta remission, it would be impossible to suffice with the signatures of two witnesses, when we need three judges, for the signatures are an essential component of the deed. We are forced to conclude that it is the creditor's declaration before the judges that cancels the shemitta remission, and the writing of the prozbul serves merely to provide proof.

 

            If the writing of a prozbul serves merely as proof, then it should not be indispensable for the prevention of debt remission. This indeed is what follows from the words of the Rosh. The Gemara (Gittin 37a) reports about the rabbis in the academy of Rav Ashi who "handed over their words from one to another." The Rambam understands that we are dealing with a leniency applying solely to Torah scholars. But the Rosh (ibid. chap. 4, sec. 13) understands that anybody can act in that manner, that is to say, to recite the prozbul formula before judges, without committing the words to writing, and so too rules the Tur (Choshen Mishpat 67). This ruling is clearly based on the assumption that the writing of the deed serves merely as proof, and so we can dispense with it. According to the Ran, it would be impossible to say this, and indeed the Ran accepts the Rambam's understanding of the passage.

 

            Some Rishonim adopt an even more lenient position. The Yerushalmi on the mishna (10:2) states: "And even if they are in Rome." According to most Rishonim (Ramban, Rabbenu Crescas, and Ran in Gittin 36a, and others), this means that one can write a prozbul even if the bonds are in Rome, for as we saw above, it is not necessary to actually hand over the bonds to the court. The Mordechai (sec. 380), however, understood the Yerushalmi differently: It is possible to write a prozbul even if the judges are found in Rome, that is to say, that it is not necessary to draw up the prozbul in the presence of a court. The creditor announces that he is handing over his debts to particular judges, and he spells out their names, and two witnesses attach their signatures to his declaration, but the judges themselves need not know anything about this, and the creditor's declaration suffices so that the debts will be transferred to the court and not be released. In addition to the great novelty here, it is clear that this position is based on the assumption that the prozbul deed is not a "court action," for the court never even convened. This deed serves merely as a proof, and what actually effects the transfer is the creditor's declaration before the witnesses.

 

            As for the law, the Shulchan Arukh (Choshen Mishpat 67:20) rules in accordance with the Rambam that an oral transfer only works for Torah scholars, whereas the Rema disagrees and rules in accordance with the Rosh and the Tur, and even adds the words of the Mordechai:

 

And some authorities say that any person can make an oral declaration before the court, and it is effective, and there is no need for a prozbul [deed]. And it does not matter whether or not the creditor is in the same city as the judges, for he can make his declaration even not in their presence: "I am handing over my bonds to such-and-such court in such-and-such city."

 

The Acharonim express their reservations about these two rulings of the Rema. For example, the Bach (67, 23) writes that lekhatchila one should not rely on the Rosh. Therefore, after the creditor announces before the court that he wishes to hand over his bonds to the court, the court should put this in writing and sign the document. Only in pressing circumstances, when it is impossible to draw up a prozbul, may one rely on the Rosh and the Rema, and make an oral declaration, without committing it to writing (Responsa Chatam Sofer, Choshen Mishpat, 50). The Tumim (Choshen Mishpat 67, 21) and others write that it is difficult to rely on the exceptional position of the Mordechai, and that one should make the prozbul declaration in the court's presence. This, however, depends on the question of the identity of the judges, an issue that we shall deal with presently.

 

I.                   The Nature of the Court

 

The Gemara in Gittin states:

 

For Shemuel said: A prozbul can only be written in the court of Sura or in the court of Nehardea… When Hillel instituted [the prozbul] for all generations, similar to his court, and like Rav Ami and Rav Asi, who are authorized to expropriate money, but the whole world, not. (Gittin 36b)

 

            According to Shemuel, a prozbul can only be drawn up before a court comprised of prominent and expert judges, who are authorized to expropriate money. The Gemara discusses the rationale behind this requirement. Initially the Gemara thinks that Hillel did not institute the prozbul for all generations, but only for his own generation, and if there would be further need for a prozbul, it would have to be re-enacted each generation anew. According to this, since the enactment of prozbul involves the expropriation of the debtor's money, a prozbul can only be drawn up by a court that is authorized to expropriate money.

 

            The Gemara, however, retracts this suggestion, and argues that Hillel may well have instituted prozbul for all generations, and so there is no need to re-enact it each generation, but nevertheless we need a court that is authorized to expropriate money. The Gemara does not explain why this should be necessary. According to the Ritva's position mentioned above, that after the bonds are handed over to the court, the debt is regarded as having been collected, it can be argued that only when the court is authorized to expropriate the debtor's money is it possible to view the debt as having already been collected. According to Rashi and the Yere'im, who say that after the bonds are handed over to the court, the court is regarded as the creditor, we must say that a court that is not authorized to expropriate money is not ready to accept responsibility for the debt.

 

            The Rambam rules in accordance with Shemuel, and writes:
"A prozbul may only be written by a court comprised of the greatest Sages, like the court of Rav Ami and Rav Asi, who were authorized to divest a person of his property, but other courts may not write [a prozbul]." Initially, Rabbenu Tam (cited by the Rosh, Gittin, chapter 4, no. 13) was also of this opinion, and therefore he ruled that a prozbul cannot be written in our time, because we lack authorities like Rav Ami and Rav Asi. Later, however, Rabbenu Tam changed his mind, and ruled that judges of the caliber of Rav Ami and Rav Asi are not needed, and that a prozbul may be drawn up by the leading court of the generation, "Yiftach in his generation is like Shemuel in his generation." Accordingly, Rabbenu Tam himself drew up a prozbul.

 

            The Rif, however, omitted Shemuel's ruling, and in his wake several Rishonim (Ramban, Rashba, Rosh and others) ruled that Shemuel's position was not accepted as law. According to them, Shemuel ruled in this fashion with the objective of constricting the enactment of prozbul as much as possible, as the Gemara itself (ad loc.) brings in his name, that if he had the authority, he would cancel the enactment outright. Rav Nachman, on the other hand, whose position has been accepted as law, argued just the opposite, that if he had the authority, he would have expanded the enactment even further. The talmudic passage about the disciples of Rav Ashi who exchanged prozbuls one with the other also proves that the leading court of the generation is not required, and that any court suffices. According to this position, any court can be regarded as the creditor, or cause the debt to be regarded as having already been collected, and the court need not be authorized to expropriate money.

 

            The Shulchan Arukh rules in accordance with the spirit of the words of Rabbenu Tam:

 

[A prozbul] may only be written in an important court, namely, three people who are experts in the law and in the matter of prozbul, and know the law of shemitta, and whom the majority has recognized as an authority over them in that city. (67:18)

 

            The Rema, on the other hand, rules in accordance with the Ramban:

 

And some authorities say that a prozbul can be written by any court. It seems to me that we can be lenient in our time.

 

            This disagreement is connected to the Mordechai mentioned above. The Gemara (Gittin 37b) states that if a person claims that he had a prozbul, but lost it, we believe him, because it stands to reason that a person who is owed me would prefer to write a prozbul, rather than lie in court: "A person would not let stand what is permitted and eat what is forbidden." The Ramban and his company prove from this that we do not require the most prominent court of the generation, for if this were necessary, perhaps the person wanted to write a prozbul, but was unable to reach the required court. The Mordechai rejects this proof, arguing that it is possible that we do indeed require the most prominent court of the generation, but it suffices to hand the bonds over to that court from a distance.

 

            In other words, the Gemara implies that writing a prozbul is a simple matter, even though writing a prozbul in the most prominent court of the generation is by no means a simple matter. We are forced then to one of two conclusions: Either there is no need for the most prominent court of the generation, or there is no need to physically appear in the court. And this precisely is the practical situation: It is preferable to write a prozbul before the most prominent court of the generation, and it is also preferable to write it in the court's presence. In practice, however, few are capable of fulfilling both conditions. Therefore, Sefaradim who follow the rulings of the Shulchan Arukh and hand over their debts to a court of the most prominent judges are usually forced to rely on the Mordechai, and hand over their debts to that court merely in the presence of witnesses.[1] Ashkenazim generally prefer to write a prozbul before a simple court, because it is easier to rely on the Ramban and his company, who say that such a court suffices, than on the novel position of the Mordechai, who says that it is not necessary to actually appear before the court. Some add a stipulation to the prozbul that if Halakha requires the most prominent court, then the judges drawing up the prozbul should function as witnesses, rather than judges, and the debts themselves should be handed over to the most prominent court (Shemittat Kesafim ke-Hilkhata, p. 241, in the name of Rav Yosef Shalom Elyashiv and Rav Sternbuch, and this is also the practice of my revered teacher, HaRav Aharon Lichtenstein).

 

II.                The Requirement of Land

 

The Mishna states:

 

A prozbul is only written if the debtor has land. If he does not have [land], [the creditor] gives him in his field [land] of minimal size. (Shevi'it 10:6)

 

            The Mishna asserts that a prozbul is only valid if the debtor has land. If he does not have land, the creditor can give him a small piece of land, based on the principle that "one may transfer ownership to a person [even] not in his presence." The Gemara (Gittin 37a) explains that it suffices if the parcel of land is large enough to grow a single cabbage. Moreover, the land need not actually belong to the debtor; it can be borrowed. Thus, the creditor can simply lend land to the debtor.

 

            Why must the debtor have land? Rashi (Gittin 37a) explains that it is unusual for a borrower not to have land, and the Sages did not make enactments for unusual cases. The Rash (on the mishna), on the other hand, understands that when the borrower has land, the debt may be seen as having been collected.[2] The Ran (Gittin 19b in Alfasi, s.v. u-mistabra) suggests a practical difference between these two explanations: According to Rashi, the borrower must have land at the time of the writing of the prozbul, whereas according to the Rash, he must have the land at the time when the debt is released.

 

            In practice, almost every person has a certain amount of land, whether owned, borrowed or rented, and therefore everyone can write a prozbul. Some have the practice of writing in the prozbul that if the debtor has no land, then the creditor presents him with land as a gift (and the judges or witnesses acquire the land from the creditor on the debtor's behalf). By strict law, however, this is unnecessary, for it may be presumed that the debtor has land.

 

(Translated by David Strauss)

 

[For part 1 click here, for part 2 click here].

 

 

[1] Some understand from the words of the Shulchan Arukh (66:21) that he rules in accordance with the Mordechai, even though this is not the only possible understanding.

[2] It is possible that this disagreement depends on the issue mentioned above, whether handing over the bonds to the court works because the debt is regarded as having been collected, or because shemitta does not release debts owed to a court. The Rashbam (Bava Batra 65b, s.v. harei hi ke-karka), however, appears to have understood prozbul according to the second possibility, and yet he writes that land is required so that the debt be regarded as having been collected, "for everything that the Sages could institute so that it not appear as uprooting a Torah law, they instituted."