Jump to navigation Jump to search
Revision as of 00:52, 30 May 2016 by Dlhanon
General Laws of Shemitat Kesafim
- At the end of the Shemittah year all loans are broken and may not be collected afterwards. Most opinions hold that this mitzvah applies today on a rabbinic level.
- The year 5775 or 2015 according to their counting is a Shemittah. The next Shemittah year is 5782 or 2022 according to their counting. 
- Unlike shmitat karka, the isur to work the land during the shmita year, which is only an obligation in Israel, the obligation of shmitat kesafim applies both in Israel and the diaspora.
Which Loans are Broken?
- A debt for unpaid purchases at a store isn't broken by the Shemittah, unless the debt was established as a loan.
- A debt for a worker isn't broken by the Shemittah, unless the debt was established as a loan.
- If one does not write a Pruzbul, it’s praiseworthy for the debtor to repay the loan as a gift anyway 
- Shemittah breaks a debt whether it was written in a document or it was just oral.
- If a person stipulates that Shemittah shouldn't break the debt, Shemittah nonetheless does break the debt. However, if a person specified that this particular debt shouldn't be broken by Shemittah the Shemittah doesn't break the debt.
- A loan which isn't collectable until after Shemittah isn't broken by Shemittah. For example, if a person has a loan that isn't collectable for 10 years, the Shemittah doesn't break it before it is collectable.
- If a person has a loan that was made without any specification of when it is collectable, it is only collectable after 30 days unless there is a clear practice otherwise, whether or not it is oral or written. If a person made such a loan within 30 days of the end of the Shemittah year, some say that the Shemittah year breaks the debt, while others say it isn't broken. One should be strict and write a prozbul to avoid this issue.
Paying Back Anyway
- If a borrower offers to pay back a loan after a shmita year has passed, the lender is obligated to say ‘mishameit ani’ (i.e. I forgive the loan). However, after technically forgiving the loan, the borrower is supposed to pay back the loan nonetheless. If the borrower does not agree to pay back after the lender says mishameit ani, the lender may make it implicitly clear to the borrower that he wishes to receive the money. Some say that the lender may physically force the borrower to pay him back.
- To avoid the issue of having one's debts broken during Shemittah so that people aren't deterred from lending money to a fellow Jew, Hillel invented the Prozbul. The Prozbul is a halachic document established by a significant Bet Din (according to Sephardim, but for Ashkenazim any beit din can write it up). 
- The pruzbul states "I, the lender, am giving to you Judges, so-and-so, so-and-so, and so-and-so, all of my debts so that I can collect it at any time". With this document, ones loans aren't broken.
- There is a question whether the beit din has to be present when one writes the pruzbul. To fulfill the maximum number of opinions, some nowadays write two pruzbuls when the one writing the pruzbal is unable to appear before a beit din of real judges knowledgeable in monetary law.
- The pruzbul must be written before the end of the shmittah year.
- According to most opinions, the pruzbul should be written Erev Rosh Hashana of the year after Shemita because the loans become nullified at the end of Shemita  However, some poskim do hold to one should write it on Erev Rosh Hashana of the Shemita year itself. 
- The prozbul is even effective for oral loans.
- In order for prozbul to be effective the borrower has to own a piece of land.If the borrower does not own land, the lender should give a small piece of land to him either as a gift or as a temporary loan (until after Rosh Hashana of the 8th year) so that the pruzbul can take effect.
- One Pruzbul can be written for all loans 
- A husband can include a wife in his Pruzbol even if she does not explicitly appoint him as a Shaliach. 
- Pruzbul on Star-K
- A Halachic and Hashkafic Overview of Shemitat Kesafim - Prozbul by Rabbi Eli Ozarowski
- Shemitat Kesafim: The Reasons Behind the Law, and Why No Beracha is Recited on Dailyhalacha.com
- Gemara Erchin 28b says that Shemittah only breaks loans at the end of the year. This is codified by the Rambam (Shemittah VeYovel 9:4) and Shulchan Aruch Choshen Mishpat 67:30. The torah states this obligation to cancel loans in Devarim 15:1
- Shulchan Aruch CM 67:1 writes that the mitzvah of Shemitat Kesafim applies today on a rabbinic level since Yovel doesn't apply today. Such is the opinion of the Rambam (Shemittah VeYovel 9:3) and Sefer Hachinuch 477. The Ramban (Milchamot to Gittin 36) writes that it is still from the Torah. The Raavad (to Gittin 36) writes that it is a midat chasidut. The Rama quotes a second suggestion, that the common leniency is based on the Terumat Hadeshen (304), who suggests that shmitat kesafim only applies in Chutz Laaretz in lands which are immediately adjacent to Israel (‘aratzot hasmuchot’), however, he doesn't suggest relying on that. Shach 67:2 quotes the Bach who says someone who follows the halacha in this matter should be blessed.
- Even though there was a dispute regarding the correct year of the Shemittah, the Rama CM 67:1 writes the correct counting is that year 5334 is a shemittah year, making year 5775 a shemitta year, by simply adding 441 which is divisible by 7.
- Talmud Yerushalmi (Shviit 10:2)
- Shulchan Aruch Choshen Mishpat 67:14
- Shulchan Aruch Choshen Mishpat 67:15
- Aruch HaShulchan CM 67:14
- Mishna Sheviyit 10:1, Shulchan Aruch Choshen Mishpat 67:2
- Shmuel in the Gemara Macot 3b, Shulchan Aruch Choshen Mishpat 67:9
- The second version of Shmuel on Macot 3b, Tosfot Macot 3b s.v. ika quoting Rabbenu Tam, Ritva 3b s.v. ika quoting the Ramban, Rambam (Shemittah VeYovel 9:9), Shulchan Aruch Choshen Mishpat 67:10, unlike the opinion of Rabbenu Eliyahu quoted by the Ritva ad loc.
- Gemara Macot 3b, Shulchan Aruch Choshen Mishpat 73:1. The Dvar Avraham 1:32 explains that the reason that the time limit of 30 days depends on the minhag is because it is only an asmachta. However, the Chasdei Dovid (Tosefta Bava Metsia 10:1) writes that even if it is biblical, nonetheless it doesn't apply if there's a practice since the practice makes it as though there was an explicit stipulation.
- Bach 67:13, Kesot 67:4, Tumim (Urim 67:27)
- Yechave Daat 4:62, Rashash (Macot 3b), Chiddushei HaRan (Shabbat 148b), Torat Zerayim (Sheviit 10:2), Minchat Chinuch 477
- Dvar Avraham 1:32
- Shviit 10:8-9, Gittin 37b
- The Gemara (Gittin 37b) states that if after a lender says mishameit ani, the borrower does not pay back the loan, the lender may be ‘tali lei’ until he agrees to pay back. There is a machloket amongst the rishonim about what ‘tali lei’ means. Rashi (D”H vitali lei) writes that the lender may even hang the borrower from a tree (tali= hang [on a tree]), or use other physical force, to get back the loan. The Rosh (4:19) however, writes that the lender may merely make it clear that he wishes that the money be returned, he cannot however, physically force the borrower (tali=hang [his face in longing for the money]). Furthermore, the Rosh adds that if the borrower refuses to pay, the lender would have no recourse, and would have to suffer the loss of the money. The Shulchan Aruch (C.M. 67:36) paskins like the Rosh (as the Beit Yosef ibid. makes clear). The Shach (11) however, accepts Rashi.
- The Gemara (36b) quotes Shmuel who adds that one may only write a pruzbul in a beit din like that of Sura and Naharada. There is a question amongst rishonim what qualifies as such a beit din. Rashi (ibid. D”H lo katvinan) writes that the beit din must be authoritative enough to extract money by force. Rabeinu Tam (Tosafot ibid. D”H dialimi) writes that one merely requires a preeminent beit din of a generation, even if they cannot extract money. The Sefer Haterumot though says that the beit din has to be knowledgeable in monetary law, hilchot shmitat kesafim, and must be officially appointed judges. There is also a question whether we paskin like Shmuel. While the Rambam (Shmita V’Yovel 9:17) paskins like Shmuel, the Tur (C.M. 67) writes that we do not paskin like Shmuel, and a pruzbul may be written in any beit din. The Shulchan Aruch (67:18) paskins like Shmuel, but accepts the version of the Sefer Haterumot. The Rama paskins like the Tur, so one may write a pruzbul in any beit din.
- Mishna Sheviyit 10:2-3, Shulchan Aruch CM 67:18-9. The Gemara in Gittin (36) states that when Hillel saw the masses violating the rules of shmitat kesafim, he instituted that one may write a pruzbul. There is a machloket Rishonim on how to interpret the Gemara’s heter of pruzbul. There is a major dispute between Rashi (Macot 3b s.v. Moser) and Tosfot (Macot 3b s.v. Hamoser) as to the mechanism of the prozbul. Rashi maintains that the prozbul in effect transfers the ownership of the debts to Bet Din and since it isn't a personal debt it is collectable even after Shemittah. Rashi (Gittin 36b D”H Rava amar) writes that even if shmitat kesafim were diorayta pruzbul could work via the mechanism of hefker beit din hefker (which is a diorayta concept that allows beit din to declare any person’s property as ownerless). However, Tosfot argues that such a method would be effective on a biblical level but prozbul is only rabbinic. Rather, explains the Ritva (Macot 3b s.v. Uvemoser) along the lines of Tosfot, it is a mere declaration of the fact that one's debts are give over to Bet Din but in truth nothing is actually transferred. Tangentially, it is important to emphasize that while Hillel did recognize a halacha which was challenging to keep, and identified a way to circumvent it, he did so by working through pre-existing valid halachic principles. However, Hillel would not have been able to simply remove a halacha because people found it difficult, without working through halachic principles.
- This depends on two readings of a Talmud Yerushalmi (Shviit 10:2), brought by Rav Chaim Kanievsky in his peirush.
- One pruzbul has the names of a beit din of great judges who are not present, satisfying the opinion that one needs a great beit din, but not the opinion that one needs to literally stand in front of the beit din. The second pruzbul contains a beit din of three regular men, which does not fulfill the requirement of being the greatest beit din of the generation, but does fulfill the requirement of being in front of the beit din. Many rely on the Rama and write a pruzbul in front of three regular men.
- There is a textual discrepancy (question of girsaot) in the Tosefta (Shviit 8:11), and while the Rosh (Gittin 8:11) writes that a pruzbul must be written during the 6th year (a.k.a. before Rosh haShanna of the shmita year), the Rashba (teshuva 2:314) and others write that it can be written even during the seventh year. The Shulchan Aruch (C.M. 67:31) paskins like the Rashba. However, the Shulchan Aruch Harav (Halvaah 36) says that lichatchila one should be machmir like the Rosh. While some are stringent for the opinion of the Rosh, the common practice appears to be to follow the opinion of the Shulchan Aruch, to only write a pruzbul before the end of the shmita year itself.
- Shulchan Aruch 67:30, Sh"t Yechave Daat 4:62, Chatam Sofer CM 50.
- Shulchan Aruch Harav Hilchot Halva'ot Siman 36 based on the opinion of the Rosh Gittin 4:18, 20 that the prohibition to collect loans begins at the beginning of shemita
- Ritva Macot 3b s.v. Uvemoser, Rama CM 67:19
- Mishna Sheviyit 10:6, Shulchan Aruch Choshen Mishpat 67:22, Gittin 37a. The Pitchei Teshuva (C.M. 67:4) writes that practically, only a person who is literally homeless, or could be kicked out of his living quarters (such as a person who lives in a dormitory or by their parents) would be considered not to own land. Presumably, one who rents an apartment, and must be given fair warning before he can be removed, is considered to own land for the purposes of pruzbul.
- One way to perform such a sale is through a kinyan sudar, akin to the kinyan sudar performed when one appoints a rabbi to sell their chameitz. In this case the borrower (or his representative) would give an object (such as a pen, handkerchief, etc.) to the lender, for which the lender would give a small portion of land to the borrower.
- Aruch HaShulchan CM 67:12, Mishna Shviit 10:5
- Rav Yosef Tzvi Rimon's Shemita Sefer in the name of Rav Shlomo Zalman Auerbach page 473