Siman 67

It is written in the Torah: "At the end of seven years you shall make a release. And this is the matter of the release: every creditor shall release that which he has lent his neighbor, he shall not exact it," etc. From the doubling of the language, it is clear that the verse speaks of two releases: one is the release of land and one is the release of funds. Our rabbis, of blessed memory, expounded: At a time when you release land, you release funds; and at a time when you do not release land, you do not release funds [Gittin 36a]. Shemittah does not apply in Eretz Yisrael after the destruction of the Temple according to the Torah, based on the plain meaning of the Yerushalmi [Chapter 4 of Gittin]. Even according to the Rambam, of blessed memory, who ruled in Chapter 4 of Shemittah that it applies by Torah law in Eretz Yisrael even in this time, nevertheless, Yovel certainly does not apply; for even during the time of the Temple, from the time the tribes of Reuven and Gad were exiled, the Yovel years ceased [Arakhin 32a], as it is said: "And you shall proclaim liberty throughout the land to all its inhabitants," etc., and we expound: specifically at a time when all its inhabitants are upon it. The verse linked the release of funds to Yovel, for the release of land is Yovel, as the language of "releasing land" refers to it being released from the buyer and returning to the seller [Rambam, ibid. Chapter 9]. The Rambam explains the Yerushalmi as referring to the release of funds and not to plowing and sowing in the seventh year [as the Tosafot wrote in Gittin, ibid.]. In the diaspora, it certainly does not apply now. Therefore, in this time, the release of funds does not apply by Torah law in any place. However, the sages enacted it so that the law of Shemittah should not be forgotten from Israel. The release of funds is an obligation of the person and not an obligation of the land; therefore, they enacted that the release of funds should apply in this time in every place, even in the diaspora. Thus did our teachers, the Amoraim, practice even in Babylonia, and such is the consensus of the poskim. But we have seen that even in the early generations, the world was not careful in this, as the Rosh wrote in a responsum, and our teachers labored to find a reason for this. We find something similar regarding terumot and ma'asrot in the diaspora, which they used to practice and afterwards they nullified them [Yerushalmi Chapter 4 of Challah]. However, regarding the release of funds, it is explicitly stated in the Yerushalmi [Chapter 6 of Shevi'it] that it applies even in the diaspora. Some have written that they only decreed upon the provinces close to Eretz Yisrael, like Babylonia and Egypt, and not in distant ones; something similar to this is found in the Yerushalmi regarding terumot and ma'asrot. Some have written that they only practiced this as long as they sanctified the Shemittah years in a beit din of ordained judges in Eretz Yisrael, and not from the time the ordained beit din ceased. All of these are weak reasons, and one who fears the word of Hashem should practice the release of funds even in this time and in every place, especially since there is a remedy through the making of a prozbul, as will be explained. In many places they are careful in this even now. The Shemittah year according to the calculation of the Rambam, the Geonim, and the sages of Eretz Yisrael was in the year 5635, and it will be, God willing, in the coming year 5642. May it be His will that the Beit HaMikdash be rebuilt speedily in our days, Amen, and we shall return to counting Shemittah and Yovel years, and the horn of the Torah shall be exalted speedily in our days, Amen. Upon one who fulfills it shall come a blessing. In section 10, that which appears to me as the reason for those who are lenient in this will be explained, and in section 6, another reason for this will be explained.

Sheviit does not release debts except at its conclusion, as it is stated: "At the end of seven years you shall make a release." Therefore, one who lends to his fellow during the sheviit year itself may collect his debt throughout the entire year in a beit din, but when the sun sets on the eve of Rosh Hashanah of the year following sheviit, he has lost his debt, and immediately it is forbidden for him to claim it [and without this it would have been permitted for him to claim it during twilight even though it is a doubt of Yom Tov, for a doubt regarding a rabbinic law is ruled leniently].

Sheviit releases the loan, whether it is a loan with a deed or an oral loan, and even if the deed contains a guarantee of property, because it is still lacking collection and we apply to it "he shall not exact." However, one who lends on a mashkon, whether he took the mashkon at the time of the loan or not at the time of the loan and took the mashkon through a beit din, it does not release; for since he has a mashkon in his hand, we do not apply to it "he shall not exact." And even if he must fulfill regarding the mashkon the commandment of returning the pledge as written in siman 97, nevertheless it does not release, for that which he returns the mashkon to the borrower is only like a loan, and the mashkon belongs to the lender. And if the mashkon was worth less than the debt, it does not release that which is against the mashkon. And there is one who says that even the excess over the mashkon does not release, for through the mashkon it is considered as if the entire debt is in his hand [Levush]. And if the mashkanta was land and the lender eats its fruits, in a place where the custom is that the borrower can remove the lender from the land at any time he pays him, sheviit releases it, for it is still in the domain of the borrower and we apply to it "he shall not exact." And in a place where he cannot remove him until the end of the time he established with him, it does not release, for it is like his own. And so too if he designated a field for him for his loan, where he limited this field for him and said to him, "from this field you shall collect your debt," even if it is not held as a mashkon by him for the eating of fruits, it does not release, for it is considered as collected and is superior to a mashkanta. And some say that even in this, specifically when he cannot remove him with money, for if he can remove him, even an apotiki releases; except that in this it is more lenient than a mashkanta, for if he cannot remove him even for one day and from then on he can remove him, it does not release, but in a mashkanta we require that it not be in his power to remove him until the time he established [Sema]. And some say that according to this opinion, even in a mashkanta, if he cannot remove him even for one day, it is called a place where they do not remove and it does not release [Taz]. And such is the primary view. And perforce one must say so, for if not so, in a place where they do not remove, why does sheviit not release it? For perforce we are dealing with a case where at the arrival of the end of sheviit the time for payment passed, for if not so, even in a place where they do remove it does not release when sheviit is within the time, as will be explained in section 6. And since the time for payment passed, behold even in a place where they do not remove he will remove him [Nimukei Yosef in the fifth chapter of Bava Metzia in the name of the Rashba]. Rather, certainly since in the past time he was not able to remove him, it is called a place where they do not remove. However, according to the first opinion, it can be said that it always refers to a case where sheviit ends within the time, and that which we wrote that in places where they do remove sheviit releases it, that is in a manner where the lender can also compel the borrower to pay him at any time he wishes and we apply to it "he shall not exact" [the Rosh there].

One who was a partner with his fellow and they were both occupied with merchandise and documents, and money remained in the hand of one of the partners, shevi'it does not release it, for shevi'it only releases loans; and even if only one is occupied with the business, nevertheless, if there is no loan upon him from the second, it does not release [so it appears to me]. And one who has in his hand an iska for half profit, which is half loan and half deposit, it releases the half of the loan. And a guarantor who paid on behalf of the debtor, and before he collected from the debtor the end of shevi'it arrived, it releases, for immediately upon paying the creditor on his behalf, the debtor became obligated to him by way of a loan for this sum that he paid for him.

Anything that sheviit releases also releases the oath pertaining to that money, as it is stated: "And this is the matter of the release," and the tradition has come that even speech is released. Therefore, oaths of the judges and the like, since if he had confessed sheviit would have released it, it also releases the oath, and he does not need to swear afterward. But the oaths of guardians and partners and the like, since if he had confessed sheviit would not have released it because they are a deposit and not a loan, therefore it does not release the oath either. And one who is indebted to his fellow and swore to pay him, anything that sheviit releases, he is also exempt from paying by power of the oath, for he only swore to pay when he is monetarily liable. And if the time of the oath was after the shemitah, it does not release [Sma], just as with money, as will be explained in the next section.

One who lends to his fellow and set the time of repayment for after the shevi'it, it does not release, for during the shevi'it we do not apply to it "he shall not exact," since the time has not yet arrived. Similarly, one who lends to his fellow and stipulated with him that this debt shall not be released by the shevi'it, his stipulation is valid, for a person can obligate himself in monetary matters even for that which the Torah did not obligate him, and any stipulation in monetary matters is valid. And specifically when he used this language, that he is obligating himself; but if he said, "on condition that the shevi'it shall not release it," which implies that the law of shemitah shall not apply to it, it is nothing, for behold, the decree of the Torah shall release it against his will and his stipulation is void. But when he stipulates regarding himself, behold, this is like creating a new debt upon himself. And if there is a custom in the city to write thus in all documents, "on condition that he shall not release this debt," they write thus and it does not release. And if in one document this was not found written, behold, it releases; and even though regarding other matters we say that even though it was not written it is considered as if it were written, as I wrote in siman 42, nevertheless regarding this we do not say so, because he can say that he intentionally did not write thus in order to fulfill the commandment of shevi'it. And there are those who wrote that therefore they do not practice in several places the release of shevi'it, for since the custom among everyone is to collect after shevi'it without a pruzbul, it is as if they stipulated thus explicitly "on condition that it shall not release in shevi'it," and every borrower borrows on this condition, and it is considered as if it were written in the document.

One who hands over his documents to a beit din and said to them, "You collect my debts for me," they are not cancelled, for we do not apply to him "he shall not exact," since he himself will not claim it. Therefore, when he claimed from him and he denied it, and he brought witnesses and the beit din found him liable and wrote a verdict for him, it is as if it were collected and it is not cancelled, for every act of a beit din is considered as if it were collected. And similarly, if he lent to him and claimed from him and he denied it and swore to him, and the seventh year arrived and he had not yet confessed nor had witnesses come, and after the seventh year he confessed or witnesses came, it is not cancelled, for at the time of the shemittah the lender did not yet have a known debt against him, and afterwards when he confessed or witnesses came, it is like a new loan. But if he confessed or witnesses came before the seventh year, and the beit din did not write the verdict for him before the shemittah, behold, this is cancelled.

A store account, where one took merchandise on credit from a shopkeeper or a merchant, is not cancelled by shemittah because this is not a loan. However, if he converted it into a loan, it is cancelled. It is called "conversion" from the time he set a date for payment, for then it is like a loan; and if the time arrived before the shemittah year, it is cancelled, as we apply to it "he shall not exact." And some say that it is called "conversion" immediately upon writing the entire account together in his ledger, for from then on it is like a loan. And a worker's wage is not cancelled, but if he converted it into a loan, it is cancelled. And the fines of an inner-violator, a seducer, and one who defames are not cancelled, but if he converted them into a loan, they are cancelled. And from when are they converted? From the time of standing in beit din, for since they are acts of beit din, their conversion is only from the time of standing in beit din, and it is not similar to a store account. And this is specifically when the beit din did not write a verdict, for if they wrote a verdict, it is not cancelled, as I have written. And one who divorces his wife before the shemittah year, her ketubah is not cancelled, for a ketubah is not a loan. But if he converted it into a loan—meaning from the time of standing in beit din and they did not write a verdict—it is cancelled. And so too if she impaired her ketubah, having received some of the ketubah, the remainder is cancelled, for it has left the status of a ketubah obligation and become like a loan. And if he was liable to him for damages or injuries, if he stood in beit din before shemittah and did not receive a verdict, it is cancelled; and if not, it is not cancelled [it appears to me]. And debts that one owes to the Hekdesh, whether for the altar or for the upkeep of the Temple, he is liable in any event, for behold it is written: "he shall not exact of his fellow," and Hekdesh is not "his fellow"; therefore the treasurer can always claim from him. And so too those liable for values [it appears to me]. And dedications to the synagogue or charity for the poor, even though their law is not like Hekdesh as I wrote in siman 95, nevertheless he is liable to pay even after shemittah, for there is no one here who will exact it of him and we do not apply to it "he shall not exact." Furthermore, all of these are not loans that shemittah should cancel them. And even if he vowed charity to a specific poor person and converted it into a loan before shemittah, it appears to me that he is liable to pay the poor person, for behold it is a vow, and by the fact that he converted it into a loan, shemittah shall not abrogate his vow. And so too if he vowed to give a gift to a certain person, even if he is wealthy, shemittah does not cancel it even if he converted it into a loan, because of the vow he made [so it appears to me].

One who comes by way of a Kuti is like him, and therefore one who purchased a shtar from a Kuti against his fellow, sheviit does not release it. However, if he converted it into a loan against him by making a shtar against him, it releases. Similarly, one who was a guarantor for a Kuti on behalf of his fellow and paid the Kuti and took the shtar from him and sued his fellow with that shtar, sheviit does not release it. But if he does not sue him with the shtar of the Kuti, it releases, even though he paid the Kuti on his behalf. Similarly, an Israelite who owed a Kuti an oral loan and another Israelite took the debt from the Kuti, sheviit releases it. And similarly a guarantee for an oral loan [it appears to me]. And an Israelite who borrowed from an Israelite and gave him a shtar in their language in a manner that the courts collect with it, then even if it is a shtar written in the Holy Tongue but the courts collect with it, also with such a shtar, if he gave the shtar to the courts before the shemittah by the command of the beit din, he may receive from him even after sheviit; since he himself does not need to collect, we do not apply to him "he shall not exact." But after the shemittah, it is forbidden for him to collect from him even through the courts, for what difference is it to me if he exacts from him himself or if he exacts from him through the courts, since sheviit has already passed, the Torah has released it [so it appears to me].

In the days of Hillel the Elder, they saw that the people refrained from lending to one another out of concern that the shemittah would release the debt, and they were violating that which is written in the Torah: "Beware lest there be a lawless thought in your heart, saying, 'The seventh year approaches...'" etc. Hillel and his beit din arose and instituted the pruzbul, which is a term for an enactment. What is its essence? That one transfers all his notes and all his debts to the beit din, whether it is a debt with a note or an oral debt. It has already been explained that one who transfers his notes to the beit din does not have his debt released according to the Torah. The enactment was that even if he does not physically transfer his notes, but the lender merely says: "I transfer to you, so-and-so, so-and-so, and so-and-so, the judges in such-and-such a place, every debt that I have, that I may collect it whenever I wish." The judges then write: "In a session of three as one, we were present, and so-and-so the lender came before us and said in our presence: 'I transfer to you...'" etc., and they sign below: "So-and-so, judge; so-and-so, judge; and so-and-so, judge." Alternatively, they write in the language of testimony, testifying that he spoke thus before them. This is literally the law of the Torah, for since he transfers the debts to the beit din, the lender no longer needs to demand payment from the borrower, and we do not apply to him "he shall not exact." According to the primary enactment, it was to be done in a distinguished beit din, as the Rambam wrote: "A pruzbul is only written by the greatest of sages, like the beit din of Rabbi Ammi and Rabbi Assi, who are fit to expropriate the property of people; but other courts do not write it." Thus far his words. So too, any distinguished beit din in the generation that is expert in the law and in the matter of the pruzbul and whom the public has accepted upon themselves. Some say that any three who constitute a beit din may write a pruzbul, and one may be lenient in this time since the entire matter is only rabbinic. The sages were very lenient in this, to the point that they said that Torah scholars who lent to one another, and the lender transferred his words to three students and said "I transfer to you..." etc., he does not need to write a pruzbul, because they know that the release of funds in this time is from their words and is set aside by words alone, for he does not need to demand payment, and these three will demand it from the borrower. Some say that any person can also state his words orally before a beit din and the beit din does not need to write a pruzbul. There is no difference whether the lender is in the city of the judges or not, for he can say even not in their presence: "I transfer my notes and my oral debts to the beit din in such-and-such a city." If he is on a journey, he can write to the judges that he transfers to them all his debts and notes. Therefore, there is one who wrote that the lender goes to two or three witnesses and says: "Be witnesses for me and see that I transfer a pruzbul before three judges, who are so-and-so, so-and-so, and so-and-so, in such-and-such a place," and it is sufficient for him if those witnesses sign it; and if the judges signed it, it is even better and he does not need witnesses. The reason for the primary enactment is because a pruzbul is only written for a borrower who possesses land or for whom another grants land, as will be explained. Since he has land, even the beit din does not need to physically seize it from him, for land is considered as if already seized in the hand of the beit din, and not with the lender—for he has no authority to seize it on his own and would need to exact it to collect it—but with the beit din, it is as if seized in their hand. It turns out that neither the lenders nor the beit din violate "he shall not exact." According to this, it appears to me to be a correct reason for why they did not practice the release of funds in many places even hundreds of years ago, and were not concerned to write a pruzbul. For behold, the release of funds in this time is rabbinic so that the law of shemittah should not be forgotten. It is a simple matter that the sages did not intend by their enactment that a matter of Torah law be uprooted, Heaven forbid, except regarding the release of funds itself because the expropriation of the court is valid expropriation, as is explained in the Gemara. But if through this a commandment of the commandments would be uprooted, certainly the sages would not have enacted it. And even though the sages said that sometimes the sages have the power to uproot a Torah law through "sit and do not act," such as the sounding of the shofar and the taking of the lulav on Shabbat, that is because of the concern of a Torah prohibition, that they might come to carry four cubits in a public domain, as is explained in the Gemara. But in a case like this, where they only enacted it as a mere remembrance, it is simple that if a matter of Torah law would be uprooted through it, the enactment is voided. Therefore, Hillel the Elder and his beit din, when they saw that they refrained from lending and were violating that which is written in the Torah "Beware lest..." etc., he arose and instituted the pruzbul. The essence of the pruzbul enactment was so that it would be as if seized, as has been explained. All this was good during the time when the hand of the judges of Israel was powerful; even in the time of the Gemara there was still an Exilarch and the judges were appointed by him and had power from the monarchy to collect and to punish one who refused them. But in our many sins, for hundreds of years we have had no power or strength to do anything; if so, automatically there is no benefit in transferring debts to judges since they have no power to collect them, and of necessity the lender himself must collect and will violate "he shall not exact," and there is no benefit in the pruzbul. Furthermore, since a pruzbul is only written for land, this was good in the time of the Gemara when the primary location of Israel was in Babylonia and the nearby countries and they had lands; but afterwards, when we were scattered to all corners of the earth and were driven from one displacement to another and we have no lands, automatically there is nothing upon which to write a pruzbul. And if we were to practice the release of funds now, it is simple that they would not want to lend and would violate that which is written in the Torah "Beware lest..." etc., for certainly the generations have not become more fit than the generation of Hillel the Elder. According to this, certainly the rabbinic enactment, which is only a remembrance of shemittah, is set aside because of a Torah prohibition. It is simple that in such a case the sages did not enact. Certainly this is a defense for the community of Israel. Nevertheless, one who fears the word of Hashem should make a pruzbul as they practiced in many places and as I wrote in section 1, see there; and such is the practice in the entire land of Lithuania.

One does not write a pruzbul except upon land, so that it shall be as if collected in the hands of the beit din. Even any small amount of land is sufficient, as there is no ona'ah for lands. Even if he only has a perforated pot resting on pegs in the air and drawing nourishment from the ground, it is like land, even though the place of the pegs is not his. Even if the borrower has no land, but the one who owes him has land, it also avails, because that borrower is liened to the creditors of his creditor by the rule of Rabbi Nathan; or if the guarantor has land, or if there is land for one who owes the guarantor. Even if neither this one nor that one has land, but the creditor or one who owes the creditor has land, he may grant ownership of the land to the borrower through another person, even not in his presence. The reason is that we are witnesses that it is pleasing to the borrower to acquire the land and the writing of the pruzbul so that he may find someone to lend to him, for the essence of the enactment was because of this, so as not to lock the door before borrowers. However, if the borrower is before us and says that it is not his will to acquire the land of others, one does not grant it to him against his will. Similarly, if the borrower had a field mortgaged in the hand of another, one writes a pruzbul upon it. Similarly, if he lent him a place for an oven or a stove, or rented them to him, one writes a pruzbul. Similarly, one writes for a man upon the property of his wife, and for a woman upon the property of her husband, and for orphans upon the property of the guardians. They were very lenient in this because in this time it is only midrabbanan as a mere remembrance; therefore, any slight reason is sufficient so as not to lock the door before borrowers.

Five who borrowed from one, one prozbul is sufficient for him, as he hands over all his debts to the beit din. And if they all borrowed in one document, even if only one of them has land, they write a prozbul for all of them, for they are all guarantors for one another, as will be explained in siman 77. And five who lent to one, each lender requires a prozbul. And minor orphans who have a loan in the hands of others do not require a prozbul, for the beit din are the fathers of orphans, and all debts they have—whether debts they inherited from their father or those from after their father's death—are considered as handed over to the beit din. And similarly, one who owes to the tzedakah fund, it is not released, for the beit din are the hand of the poor, and besides the reasons we explained in section 8. But adult orphans require a prozbul, except that in this they are superior, for we claim on their behalf that perhaps their father had a prozbul or perhaps he stipulated with the borrower that it should not be released; and for any other person we do not claim on his behalf. But if he claims for himself, "I had a prozbul and it was lost," he is believed. And not only that, but the beit din ask him, "Perhaps you had a prozbul and it was lost?" and if he says so, the matter is believed, for in a case such as this, it is "open your mouth for the mute." And if the beit din did not say this to him, and he left the beit din and returned and said, "I had a prozbul and it was lost," if it is before the verdict, he is believed, and after the verdict, he is not believed, for since he was silent at the time of the verdict, it is apparent that he did not have a prozbul, for if it were not so, he would have claimed it, and now upon his exit from the beit din, they instructed him to say so. And similarly, when the lender says, "There was a condition between us that it should not be released," or "It was a store credit," or from other matters that the shemittah does not release, he is believed with a migo that if he wanted, he could have said, "I had a prozbul and it was lost." But without a migo he is not believed, and certainly the beit din do not ask him, for only the claim of a prozbul, which is in his hand and easy to do, is he believed and the beit din ask him, which is not the case with other claims. And one should not ask: why is he believed with a migo, for it is a migo to extract money? For it can be said that with a strong presumption such as this, like the writing of a prozbul where there is no loss and it is easy to do, he is believed with this migo even to extract money [see the Gra, subsection 58, and according to what I wrote it is well, and there is no need for the Hagahot Mordechai, and delve into this].

According to the opinion of the Rambam, of blessed memory, the creditor may claim his debt in beit din throughout the seventh year until its end; therefore, as long as he is able to collect the debt in beit din, a pruzbul may be written. Consequently, one may write pruzbulin until the end of the day of the eve of Rosh Hashanah of the eighth year. An antedated pruzbul is valid, for he has only caused a loss to himself, as he did not hand over to the beit din the debts that he lent after the time of the pruzbul. A postdated one is invalid, for he cannot hand over to the beit din debts that he has not yet lent. If the creditor produced a pruzbul and the debtor claims that this loan occurred afterward, and the creditor denies it, the creditor is believed; for he is believed even to say "I had a pruzbul and it was lost," even though we do not know its time, and all the more so when the pruzbul is before us is he believed.

One who returns a debt over which shemittah has passed, and the lender does not have a prozbul, the lender must say to the borrower, "I release [the debt]" and "you are already exempt from me." If the borrower said to him, "Even so, it is my will that you accept it from me," he may accept them. However, the borrower should not say to him, "I am giving this to you for my debt," but rather, "I am giving it to you as a gift." And if the borrower returned the money to the lender and did not say these words to him, the lender should maneuver with words until he says so to him, that he is giving it to him as a gift. And if, despite this, it did not avail, it is forbidden for the lender to accept them, and the borrower shall take his money and go his way. And if afterward he comes once more and says these words to him, it avails, and the lender accepts his money [Gemara]. And when the borrower leaves him with the money, the lender may appoint people who will say to the borrower, "Go once more and say to him: It is my will that you accept the money and I am giving them to you as a gift" [as is implied in the Gemara, Gittin 37b].

A promissory note upon which shemittah has passed and a pruzbul was not made for it, and the debtor does not wish to give them as a gift, we remove the promissory note from the lender and hand it over to the debtor. And one who sells a promissory note to his fellow and shemittah passed upon it, the buyer does not return to the seller, for behold, he was negligent himself in that he did not make a pruzbul. And if shemittah had already passed upon it when he sold it, we claim on behalf of the buyer that the seller had a pruzbul. And if the seller admitted that he did not have a pruzbul, if he has assets, he is believed, and the debtor is exempt and he pays the buyer. But if he does not have assets, he is not believed to disadvantage others with his admission. And there are those who disagree on this, for behold, he is believed with a migo that if he wanted he could have forgiven it. And if he does not have a migo of forgiveness, such as when he sold it in the presence of the three of them where he cannot forgive as was written in the previous siman, even if he has assets he is not believed [Shach and the Gra], for since he sold it, he is not believed without a migo, as he is like another.