Shmitat Ksafim- Cancelling Debts
Shmita is not only about agriculture. Loans are also cancelled out by the end of the Shmita year. We learn in Dvarim 15:1-10:
At the end of seven years you shall institute a remission. This is the matter of the remission: every creditor shall remit his authority over what he has lent his fellow; he shall not press his fellow or his brother for He has proclaimed a remission for Hashem. You may press the gentile; but over what you have with your brother, you shall remit your authority…Beware lest there be a lawless thought in your heart saying, “The seventh year approaches, the remission year,” and you will look malevolently upon your destitute brother and refuse to give him- then he may appeal against you to God and it will be a sin upon you. You shall surely give him and let your heart not feel bad when you give him, for in return for this matter, Hashem, your God will bless you in all your deeds and in your every undertaking.
Is Shmitat Ksafim D’Oraita (a Biblical obligation) or D’Rabbanan (a Rabbinic Obligation) today?
The Talmud, Gittin 36a comments on the words of the Mishna: “And Hillel instituted prosbul (a document that allows debts to be collected after Shmita) for the benefit of society.”
We learned in a Mishna (Shviit 10:3-4): when a person writes a prosbul, he does not have to relinquish his loans and may collect them after Shmita. This is one of the things that Hillel HaZaken instituted for he saw that the people refrained from lending money to one another as Shmita approached because they were afraid that they would not be repaid in time. They thereby transgressed that which is written in the Torah (Dvarim 15:9): “Beware lest there be a lawless thought in your heart saying, “The seventh year approaches, the remission year,” and you will look malevolently upon your destitute brother and refuse to give him…” Hillel therefore rose and instituted prosbol.
The Gemara asks: But can there be such a thing that from a Biblical standpoint, the seventh year cancels loans and Hillel decreed that it does not cancel?
The Gemara answers: Abaye said: Hillel instituted prosbul to be effective only in regard to the observation of Shmita nowadays, following the view later articulatd by Rebbi, that Shmita’s cancellation of loans nowadays is only a Rabbinic law. As it was taught in a Braita: Rebbi says “and this is the matter of the remission, remit”. The verse speaks of two Shmitot (relinquishments) one is the relinquishment of land (Shmita of the land) and one is the relinquishment of monies (Shmitat Ksafim) that are owed to you. The Torah compares the two to teach us that at a time that you relinquish land, you relinquish monies that are owed to you. But at a time that you do not relinquish land, you do not have the obligation to relinquish monies owed to you.
Abaye continues: Nevertheless, the Rabbis declared that Shmita should cancel out loans even nowadays, as a reminder of the Biblical law of the seventh year so that it not be forgotten. Since Shmita’s cancellation of loans is Rabbinic today, when Hillel saw that people refrained from lending money to one another, he rose and instituted the prosbul.
But can there be such a thing that from a Biblical standpoint, the seventh year does not cancel loans and the Rabbis decreed that it does cancel?
Abaye said: It is a situation of abrogating Torah law by ordering one to sit and not do any action which the Rabbis are indeed empowered to do.
Rashi (Gitin 36a) points out that Hillel follows Rebbe that Shmitat Ksafim today is DeRabanan. When the Shmita of the land is in force, then the Shmita of money is also in force. Since in our time, the Shmita of land is rabbinic, so too, the Shmita of money is rabbinic. Even though Hillel lived at the time of the Second Temple, they did not observe Yovel (since the tribes were not all settled in Israel) and Shmita was not DeOraita as we learn in Arachin 32b, “They counted the Yovels in order to sanctify the Shmita years.” Since Yovel was not in effect, Shmita was not Biblically in effect. The students of Rabbeinu Yitzcak HaLevi quote Gittin (Yerushalmi): Why is Shmita only in effect when Yovel is in effect? The reason is because it says “and this is the matter of the remission, remit.” One Shmita refers to the Yovel, and one Shmita refers to the Seventh year. However, in Torat Kohanim, it says that Shmita is in effect even if Yovel is not in effect. Rashi therefore concludes that there is a machloket (dispute).
According to Tosafot, the Yerushalmi and Bavli compare Yovel to Shmita of the land and Shmita of money. Therefore, when the Yovel (release of land) is in force, then Shmita (of land and money) are in force. When the Yovel is not in force, Shmita (of land and money) are not in force.
According to Rabbeinu Tam, Yovel and Shmita were DeOraita during the time of the Second Temple and Prosbul only went into effect after the destruction of the Second Temple.
Ra’avad agrees with Tosafot. Since Yovel is not observed today, even rabbinically, Shmita of land and money are not in force today. Those who observed Shmitat Ksafim, observed it as a Midat Chasidut, act of piety. Meiri (Magen Avot 15) follows this opinion.
According to the Ittur (I. Pruzbol), Shmitat Ksafim is Biblical today (just as he would consider Shmita of the land to be Biblical).
Rashi, Rabbeinu Tam , Rashba , Ritva and the Rambam all teach that Shmitat Ksafim is Rabbinic today.
The Rambam states in Hilchot Shmita v’Yovel 9:2:
The nullification of debts applies according to Biblical Law only in the era when the Yovel is observed and the sale of land is also nullified, for the land that has been sold returns to its original owners without financial payment. This matter was conveyed through the chain of tradition. Our Sages declared: In the era when you nullify the sale of land, you nullify debts everywhere, whether in Eretz Yisrael or in the Diaspora. In the era when you do not nullify the sale of land, you do not nullify debts anywhere, even in Eretz Yisrael.
Is a borrower allowed to repay a debt after the Shmita year?
We learn in the Mishna Shviit 10:8:
If a debtor comes after the Shmita year to repay the debt cancelled by the Shmita year, the creditor must say to the debtor: “I remit the debt (as required by the Torah).”
If the debtor said to the creditor: “Even so (I want you to accept it).” He may accept it from him since it is written (Dvarim 15:2) “And this is the manner of the release.”
Mishna Shviit 10:9 continues:
Whoever repays a debt in the Shmita year, the Rabbis are pleased with him.
Rambam states in Hilchot Shmita v’Yovel 9:28:
Whenever anyone returns a debt despite the fact that the Sabbatical year has passed, the spirits of our Sages are gratified because of him. When receiving the payment, the lender must say to the one who is making restitution: “I am nullifying the debt and your obligation to me has been released.” If the debtor says: “Nevertheless, I desire that you accept it,” he should accept it for the Torah states: “One shall not demand payment,” and payment was not demanded.
What happens if the lender does not say “I remit it?”
The Minchat Chinuch (477) brings a dispute between the Yereim and the Or Zarua. The Yereim’s view is that if the lender did not say, “I remit it,” then the debt is not released. According to the Or Zarua, the debtor does not need to be concerned since the Torah released the debt. The creditor only needs to say “I remit it” when the debtor brings him the money.
When is the debt released?
We saw in Dvarim 15:1: “At the end of seven years you shall institute a remission”. This can be compared to Dvarim 31:10 where it says in reference to HaKhel: “At the end of every seven years, in the time of the year of release during the holiday of Sukkot.”
Arachin 28b infers that Since HaKhel is held after the Shmita year, debts are also cancelled at the end of the Shmita year.
According to the Rambam, Hilchot Shmita v’Yovel 9:4:
The Shmita year does not nullify debts until its conclusion. This is derived as follows: Dvarim 15:1 states: “At the end of seven years, you shall effect a remission. This is the matter of the remission.” And Dvarim 31:10 states: “At the end of seven years, at the time of the Sabbatical year, during the holiday of Sukkot.” Just as in that instance, the event takes place after the seven years, so too, the nullification of the debts takes place after the seven years.
Therefore if one lent money to a colleague in the Sabbatical year itself, he may demand payment of his debt for the entire year. When the sun sets on the night of Rosh HaShana of the eighth year, the debt is nullified.
According to the Rosh (Gittin 4:18, 20) “he shall not exact it” already takes place at the beginning of the Shmita year. However, the Shulchan Aruch, Choshen Mishpat 67:30 rules that the Shmita year cancels the debts at the end of the year. Therefore, one can still collect debts during the Shmita year. Therefore, the prosbul should be written up at the end of Elul of the Shmita year.
How does the prosbul work?
The lender authorizes a Beit Din (three observant men) to collect money on their behalf. Only loans between a Jew and their fellow Jew are cancelled (not loans between a Jew and a Beit Din) as we learn in Dvarim 15:3, “You must forfeit a claim against your brother.”
The Talmud, Gittin 36a presents this formula for the prosbul:
I submit before you, so and so and so and so, the judges in such and such a place, that every debt owed to me by so and so- that I shall be able to collect it whenever I wish.
And the judges sign below the text of the prosbul or the witnesses sign.
Rav Lichtenstein came up with two formulas for the prosbul, one text is for someone who does not own land and one is for someone who does own land. These texts are updated each Shmita cycle.
We see from here that Shmita is not only about agriculture, it is also about loans being cancelled out by the end of the Shmita year. If you lent someone money which you would like to get back or according to some opinions if you have a savings account, then you should set up a prozbul. The obligation to arrange for a prozbul so that you can still be paid back after the Shmita year for money that was borrowed applies to both men and women.