The concept of Shemittah – the Jewish Sabbatical Year – includes among other things a provision to release people from debts owed to others. Though clearly a noble and moral sentiment, such a law can easily lead to problematic situations and even exploitation. Levi Cooper delves into one possible solution to this issue, provided by a 2000 year-old legal loophole…
One aspect of Shemittah – the biblically mandated Sabbatical Year – is debt relief: Creditors release debtors from loans that are due to be repaid. The release – termed Shemittat Kesafim (release of monies) – is triggered on Rosh Hashanah following the Sabbatical Year: sundown September 25, 2022.
During the Second Temple period, it became apparent that creditors were not extending loans to the needy, lest they would not be able to recover the funds because of Shemittat Kesafim. Extending credit to the needy is a form of charity. Moreover, not providing loans because of Shemittat Kesafim is in conflict with the biblical warning not to let the remission hinder extending credit.
To combat the trend, Hillel the Elder instituted a legal instrument termed prozbul – a fictitious transfer of bonds held by creditors to the court of law. The sabbatical remission applies only to debts owed to individuals, and not to debts owed to the court. Hence, the bond remains intact despite the biblical debt relief. Creditors – acting as agents of the court – can then recover outstanding debts despite Shemittat Kesafim.
Prozbul involves a simple declaration attested by witnesses or judges: “I deliver to you [insert names] judges of [insert location], that any debt that I have [owed to me] that I may collect it at any time I choose.”
The specific goal of Hillel’s legal innovation was to help the needy by encouraging creditors to extend loans. The motivation for Hillel’s enactment is also described in general terms as mipnei tikkun ha-‘olam, for the sake of order of the world. In contemporary discourse, Tikkun Olam has become a popular – and one could argue overused – catchcry.
The meaning of the Greek term prozbul and its Hellenistic legal origins have been discussed by scholars. Already in Babylonia, the rabbis were unsure of the term’s etymology. Thus Rava sought assistance from a foreigner who spoke Greek as to the meaning of the term. The Greek-speaker explaned: Pursa (enactment) of the matter. Scholars have suggested that the term comes from προσβολή (prosbolé), meaning delivery and describing the transfer of the bond to the court. Other scholars suggested that the term is a portmanteau of πρὸς βουλῇ βουλευτῶν (pros boulé bouleuton), meaning before the assembly of councilors and describing the authority that receives the bonds. The Talmud offers a different explanation: The term comes from the words pros buli and buti – the enactment (pros) for the wealthy (buli) who can recover debts, and for the impoverished (buti) who can obtain loans.
By the Middle Ages, Shemittat Kesafim had been forgotten in many Jewish communities. It was not just that the loan remission was not observed, but executing a prozbul to avoid debt cancellation was also not widespread. This is apparent from legal sources that can be divided into four categories:
To be sure, prozbul templates and documents from the Middle Ages have survived. For example, a prozbul from 1224 was discovered in the Cairo Genizah.
The balance of the legal sources was a demand to keep the debt relief law, which meant choosing between two alternatives: either debt release or using a legal instrument to avoid debt release. This second path included various options, such as executing a prozbul, incorporating a circumvention clause in the loan contract, setting the payment date after Rosh Hashanah, securing the loan with collateral, and more.
No one suggested that there was a legal need or a religious value for creditors to do both; that is, cancel debts and avoid debt release. To be sure, there is nothing wrong with choosing different alternatives for different debts. It was at the discretion of creditors whether to cancel a debt or opt for a workaround. It is not hard to imagine a creditor applying the debt release to certain loans, while avoiding the release for other loans. For example, a creditor may choose to cancel a personal loan to a poor debtor, but execute a prozbul for a loan to a successful entrepreneur who has suffered a temporary loss. In other words, the circumstances might dictate the creditors’ decision. No sources suggested that there was a religious ideal to actively seek a way to fulfil the biblical command and release debts.
The great Baghdadi scholar, Rabbi Yosef Hayim (1835-1909), discussed debt relief laws in his Ben Ish Hai – a compendium of practical Jewish law, designed as a two-year programme of study. Rabbi Yosef Hayim was a prolific writer, but he is identified by the title of this volume due to its widespread popularity. After recounting the basic laws of prozbul, Ben Ish Hai added a watershed passage:
And behold there are those who act piously, after they write the prozbul, they lend some sum of money – ten grush or less or more – to a friend, and on that amount the prozbul is ineffective, since they loaned [the money] after the time of the prozbul.
And then, after Rosh Hashanah, when his friend brings him the funds to pay him back, [the creditor] should say to [the debtor] “I cancel [the debt],” and [the creditor] should not receive [the funds] from [the debtor], and the debtor can use these funds and enjoy them, and the creditor can enjoy the mitzvah of releasing monies [owed] that he actually fulfilled.
Grush refers to a silver currency unit used for daily transactions in the Ottoman Empire. The purchasing power of ten grush in Ben Ish Hai’s context may be estimated at US$15-20. Thus the loan that Ben Ish Hai was advocating was a symbolic gesture, though the amount was not worthless. The symbolism of the act is further emphasised by the identity of the recipient – a friend, rather than a pauper. This post-prozbul loan was an attempt to preserve an element of debt release, even if it was only a shadow of the original biblical commandment.
Ben Ish Hai opened his description with the claim that “there are those who act piously” – indicating that this was an existing custom. Alas, documentation of such a practice has not reached us. At least as far as local practice was concerned, Ben Ish Hai seems to have introduced the custom in Baghdad, as the following biographical note suggests:
I instituted this mitzvah here in our city Baghdad, may God protect it. I printed prozbul documents and I distributed them to a number of people and they executed them.
And I also taught them that they should do thus – to loan any sum after the prozbul time and to actually fulfil the mitzvah.
Ben Ish Hai added a further angle:
And also if a person borrowed loaves of bread from his friend, even one loaf, the law of Shemittah applies to this.
In the eyes of the Ben Ish Hai, this was an opportunity for fulfilment of the mitzvah by another sector of the community:
Therefore, it is good if the woman loans a loaf of bread or two or three to her friend on the day before Rosh Hashanah, and after Rosh Hashanah when [the borrower] pays her back, she will say to her: “I cancel [the debt],” and thus this woman fulfils the commandment of Shemittah.
Once again Ben Ish Hai provided a local report, followed by a triumphant crescendo:
And thus a number of women did so in our city, may God protect it, because with the help of God may he be blessed, I preached [about] this matter in public. Fortunate is Israel!
Lest we think that Rabbi Yosef Hayim was a lone voice advocating this creative course: Another authority, from a later period and from a different cultural milieu also signed a prozbul and then gave a loan in order to preserve an element of the original biblical requirement. This episode was reported in 1994 as Shemittah 5754 drew to a close.
On Shabbat afternoon, August 6, 1994 – the day before Rosh Hodesh Elul, the final month of that Shemittah year – Rabbi Pinhas Menachem Alter of Ger (1926-1996) spoke to his Hasidim, as was his custom. These talks were posthumously published under the title Pnei Menahem. As per the Ger practice, the title of the rebbe’s work became the standard name for the hasidic master.
Within a month of the talk, people would diligently execute prozbuls before the next Hebrew year began. At the end of his talk, Pnei Menahem added a vignette about his father, Rabbi Avraham Mordekhai Alter of Ger (Imrei Emet, 1865-1948):
I heard from one the elders who saw that my father of blessed memory (when he was in the Land of Israel) in the Shemittah year wrote a prozbul as per the institution of the sages, and nevertheless since he wanted to fulfil the commandment of Shemittat Kesafim, therefore after writing the prozbul he sought after a poor person to lend him a bit of money in order to fulfil the plain meaning of the verse “and your heart shall not be resentful [when you give to him; Deut. 15:10], since loans from here henceforth are released.
There is no indication that the Polish hasidic master had been inspired by the Baghdadi rabbinic leader. Imrei Emet seems to have gone further than Ben Ish Hai in that he sought a needy person, so that the debt relief would provide real assistance to the impoverished.
Notwithstanding the difference, it seems that the two rabbis – who were educated in different cultural contexts – were driven by a heartfelt desire to fulfil the original biblical commandment, despite the existence of an acceptable rabbinic workaround.