The Laws of Shemitas Kesafim and Pruzbul– Part 1
Type of Bais Din and When One Cannot Appear in Person
The entire Siman 67 in Choshen Mishpat deals with the Halachos of Shemitas Kesofim i.e. the prohibition of the malveh, the lender, not to collect loans past the seventh year, known as Shemita, of the seven year cycle and Hillel’s establishment of the Pruzbul, which permits post Shemita loan collection. In Simon 67:1 the Mechaber states that Biblically, Shemitas Kesofim is only mandated when Klal Yisroel is commanded to keep Yovel i.e. the special laws of the 50th Jubilee year. Since Yovel is only practiced when the majority of Jews reside in Eretz Yisroel it is not practiced today and thus neither is Shemitas Kesofim. However, Rabbinically, Shemitas Kesofim is mandated even in our times. The Rema quotes an opinion that in our times Shemitas Kesofim is not adhered to even on a Rabbinic level. The consensus of Poskim is that while there is no Biblical obligation to adhere to Shemitas Kesofim in our times, nevertheless, it is mandatory from the rabbis.
It is for this reason that our custom is that a Pruzbul is written before Rosh Hashana of the eighth year i.e. before the end of Shemita to allow for the collection of loans post Shemita. There is a minority view that a Pruzbul should be written before the start of Shemita i.e. before the beginning of the seventh year and thus some have this minhag as well.
According to the Torah if one actually delivers his loans with their documentation to Bais Dinfor Bais Din to collect them, then Shemita does not prevent those loans from being collected [by Bais Din.] Hillel instituted that merely notifying Bais Din of one’s outstanding loans and intent to deliver them to Bais Din by way of the Pruzbul, enables their collection post Shemita.
WHAT KIND OF BAIS DIN IS ACCEPTABLE?
The Mechaber in Simon 67:18 states that a Pruzbul can only be written in front of an esteemed Bais Din which consists of three expert judges who are knowledgeable in Halacha, know clearly the laws of shemita and were accepted by the Tzibur, by the community, to be judges over them. The Mechaber is based on the opinion of Sefer HaTerumos who says that this Halacha conforms with Shmuel’s opinion in the Gemora that a Bais Din has to be like that of Rav Ami and Rav Asi who were gedolei hador and thus had the power to extract money from one party and give it to another party. The Sefer Haterumos applied the law to a Bais Din that was accepted by the community, since such a Bais din also has the power to extract money from one party and give it to another party (see CM siman 2). It follows, that both a Bis Din that was accepted by the community and a Bais Din that contains a gadol hador are equally valid, according to this opinon, as both are a Bais Din that have the power to extract money from one party and give it to another party.
The Rema brings an opinion which says that any Bais Din can write a Pruzbul. The Rema continues and states that “in my opinion we can rely on this leniency since, as mentioned, Shemitas Kesofim in our times is only Rabbinic and not Biblical”. The Rema’s opinion is predicated on those rishonim who say that we do not abide with Shmuel’s ruling that a Bais Din must be like the Bais Din of Rav Ami and Rav Asi.
Shach (67:5) refers to the Mabit (Volume 1 Siman 81) that one must go to the most worthy Bais Din in a city to write a Pruzbul and otherwise the Pruzbul is not valid. However, not in keeping with the Mabit, the Kitzur Shulchan Aruch (KSA), the Shulchan Aruch HaRav and Rav Chaim Kanievsky, Shlita in his Derech Emunah (DE) state that any Bais Din suffices as long as they consist of Bnei Torah (KSA), and such is the present custom (DE). It should be noted that the custom of the Chazon Ish Zt”l was to go for a Pruzbul to the most esteemed Bais Din of the Badatz Yerusholayim under Rav Dushinsky Zt”l, as did Rav Elyashiv Zt”l. Rav Shlomo Zalman Ohrbach Zt”l was not makpid on a Bais Din Choshuv. The sefer Teshuva M’Ahava states that the custom in Prague was to take three hedyotos – three plain people.
Based on the above it would seem that Sephardim need to follow the psak of the Mechaber and go only to a Bais Din accepted by the whole community or a Bais din that contains a gadol hador. Such a Bais Din is extremely rare and hard to find. In most cities in the world the local Bais Din is only accepted by the litigants to adjudicate the Din Torah that they are approaching Bais Din to resolve, through signing a document to that effect. Most Batei Din are not accepted by the whole community. In our times perhaps a Bais Din under the jurisdiction of a Godol HaDor such as Rav NissimKarelitz, Shlita or Rav Naftali Nussbaum Shlit”a would be considered as accepted by the whole community and containing a gadol hador. Sephardim, it would seem, would have to travel to Rav Karelitz’s Bais Din, or the like, to write a Pruzbul. Is there perhaps a solution to this issue so that all Sephardim do not have to travel far distances to write a Pruzbul?
DOES THE PRUZBUL HAVE TO BE WRITTEN STANDING IN FRONT OF BAIS DIN?
The Mechaber (67:19) describes the procedure for writing the Pruzbul. The lender appears in front of Bais Din and declares to Bais Din that he would like to be able to collect all his debts following Shemita whenever he so desires. Upon hearing this declaration the Bais Din signs the Pruzbul indicating that the lender has made this declaration. Thus according to the Mechaber the Pruzbul procedure consists of 1. Appearing in front of Bais Din and making a declaration and 2. Having a written confirmation of this declaration signed by the Bais Din. The Mechaber goes on to say that if the lender and the borrower are both Talmidei Chachomim it is only necessary to appear in front of Bais Din and make a declaration. Putting this declaration in writing is not required. The Rema adds that according to some opinions even if the malveh and loveh are two plain Jews a verbal declaration can be made in front of Bais Din without the necessity of putting this declaration in writing.
The Mechaber (67:21) adds a further leniency based on a minority opinion. The lender can declare in front of two or three witnesses that he is giving over his debts to a specified Bais Din for collection after Shemita. The Pischei Teshuva quotes the Chasam Sofer as saying that according to this opinion even a non learned malveh would not have to appear in front of Bais Din. The important factor is that a Bais Din or witnesses have knowledge of the declaration that the lender declared that he is either giving over his debts to that very Bais Din or to another specified Bais Din for collection after Shemita. Chasam Sofer adds, that with this process it is necessary that Bais Din puts the declaration in writing. .
In summary, based on the above, maintaining the right to collect one’s outstanding debts by way of a Pruzbul can be accomplished in one of three ways. 1. Declaring in front of Bais Din and having Bais Din sign the Pruzbul indicating in writing that the verbal declaration had been made in front of them. 2. Declaring in front of Bais Din without having a written confirmation of the declaration as a special dispensation for Talmidei Chachomim according to the Mechaber and for anyone according to the Rema. 3. Not appearing in front of Bais Din but creating a form of testimony of the declaration, either by verbalizing the declaration in front of 2 or 3 witnesses who can testify that he made a declaration that he delivers his debts by means of Pruzbul to a distant Bais Din or with a letter to a Bais Din that he declares that he delivers his debts by means of Pruzbul to that Bais din or a distant Bais Din. s
Ashkenazic Poskim are of the opinion that according to the Rema declaration of the Pruzbul can be made either verbally in front of Bais Din or in writing without appearing in Bais Din. There are, however, some Ashkenazi Poskim who are of the opinion that according to the Rema appearing in front of Bais Din is a necessity.
Can Sephardim rely on the minority opinion brought by the Mechaber that it is not necessary to appear in front of a Bais Din for the Pruzbul? Is it sufficient for the lender to make a declaration of the Pruzbul either through witnesses or in writing signed by the lender? This would be a solution to the issue raised above of requiring Sephardim to travel to a Bais Din accepted by the whole community. A signed letter sent to a Bais Din or a declaration in front of 2 or 3 witnesses who can testify that he made a declaration that he delivers his debts by means of Pruzbul to a distant Bais Din that contains a gadol hador would be sufficient.
Chacham Ovadia Yosef zatza”l in his Yabia Omer (Volume 3:6), as well as Ohr L’Tzion in Hilchos Shemitas Kesofim, rule leniently. They rule that Sephardim can rely on this mentioned leniency.. In Part 2 of this article we will learn how this ruling has been implemented by Sephardim or by Ashkenazim who would like to be machmir and use a Bais Din Chashuv or one universally accepted.